United States District Court, S.D. Ohio, Western Division
BRENT A. ADKINS, Plaintiff,
MARATHON PETROLEUM COMPANY, LP, Defendant.
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
Brent A. Adkins brings this action against defendant Marathon
Petroleum Company, LP (Marathon) for negligence under the
Jones Act, 46 U.S.C. § 30104, vessel unseaworthiness
under the general maritime law, and maintenance and cure.
Plaintiff originally filed his case in Louisiana state court
in 2015, where it was dismissed on forum non
conveniens grounds. Plaintiff re-filed the lawsuit in
this Court in late September 2017. Plaintiff alleges in the
second amended complaint that he was exposed to hydrogen
sulfide (H2S) while working as a tankerman,
deckhand, mate, and crew member for Marathon from November
2008 until May 2012. (Doc. 18). Plaintiff claims he was
injured as a result of long-term exposure to H2S
and other hydrocarbon fumes in the scope and course of his
employment aboard tugs and barges owned and operated by
Marathon. Plaintiff alleges that Marathon negligently caused
him to be chronically exposed to H2S fumes while
loading and unloading cargoes of vacuum gas oil (VGO) and
asphalt products. Plaintiff claims the fumes injured him and
his lung performance deteriorated rapidly as a result of his
exposure to H2S such that that he now requires
supplemental oxygen on a nearly continuous basis. Plaintiff
alleges that the unseaworthiness of Marathon's vessels
was a substantial factor in his injuries and that he is
entitled to maintenance and cure.
Court has held several informal discovery conferences with
the parties' counsel to resolve various discovery
disputes that have arisen in the case. Over the course of
discovery, the parties have submitted briefs on specific
discovery issues as directed by the Court. The parties'
discovery disputes have largely revolved around the subject
of atmospheric and exposure monitoring of H2S,
which plaintiff has referred to as "Industrial Hygiene
(IH) studies" or "Industrial Hygiene reports."
Plaintiff alleges that Marathon has not produced IH studies
for H2S-producing agents to which he was exposed
over the course of his employment with Marathon. Marathon
argues in response that it has produced all of the relevant
information that plaintiff seeks in a 142-page document,
which purportedly is a compilation of the results of all
atmospheric monitoring Marathon performed in its marine
division between 2006 and 2012. (See Doc. 53, Exh.
20). Plaintiff contends that the 142-page document does not
satisfy Marathon's discovery obligations because Marathon
has failed to produce other information related to
H2S monitoring and exposure which is relevant to
plaintiffs discovery requests but is not included in the
142-page document. Plaintiff asserts that the undisclosed
information includes the underlying, or source, data for the
information provided in that exhibit.
Court issued discovery Orders following the informal
discovery conferences with the parties' counsel,
including a May 14, 2019 Order on issues related to
plaintiffs Requests for Production of Documents (RFP) Nos.
28, 29, and 30. (Doc. 38). Plaintiff sought in those
requests: (1) documents related to IH studies Marathon had
performed to determine the existence of H2S gas
emissions on its tugboats and barges which carried specified
H2S-producing materials (RFP No. 28); (2) IH
records and other written materials reflecting certain
properties of Marathon's fuel and liquid cargoes,
including all H2S monitoring results related to
exposure of crews to H2S and benzene while serving
on Marathon tugboats and barges during the period of
plaintiffs employment (RFP No. 29); and (3) all IH or other
reports prepared for Marathon relating to the level of
airborne chemical and hydrocarbon fumes during the period of
plaintiff s employment (RFP No. 30). (Doc. 38-3).
Court directed Marathon to respond to RFP No. 28 by providing
the following documents for the relevant time period
(November 2008 through May 26, 2012): (a) lab analysis of the
amount of H2S and other hydrocarbon emissions of
the products transported on the vessels plaintiff was
assigned to; (b) the IH samples for asphalt and VGO that were
taken on any barges that plaintiff worked on, and during the
loading and unloading of those barges, which carried those
products; (c) the certificate of analysis for any testing
related to these products which was conducted on the vessels
that plaintiff worked on; and (d) for any sampling IH reports
produced for the asphalt and VGO samples on the barges
described in (b), the identity of the product tested,
including a lab number to match any certificate of analysis.
(Doc. 38 at 5-6). The Court ordered Marathon to respond to
RFP Nos. 29 and 30 to the extent those materials relate to
the products at issue (asphalt, VGO, H2S gas, and
other hydrocarbon emissions), for the relevant time period
(November 2008 through May 26, 2012), which were transported
by vessels that plaintiff was assigned to during his
employment with Marathon. (Id. at 6).
Court held two follow-up discovery conferences. (See
Docs. 39, 43). As of June 12, 2019, the parties had exhausted
the informal discovery process. The Court ordered the parties
to: (1) go forward with the Rule 30(b)(6) depositions; and
(2) if plaintiff maintained the position following the
depositions that Marathon had not produced all material
relevant to his document requests, then plaintiff could file
a motion to compel supported by (i) evidence to show that the
material produced by Marathon was non-responsive, and (ii)
legal authority for his position that Marathon had failed to
produce information that was responsive to plaintiffs
document requests. (Doc. 43).
plaintiff believed following completion of the Rule 30(b)(6)
depositions that Marathon had not produced all relevant
materials in response to the Court's May 14, 2019 Order,
he filed a motion to compel. (Doc. 47). Plaintiff also moved
for leave to file an amended supporting memorandum. (Doc.
50). Marathon does not oppose plaintiffs motion for leave to
file an amended memorandum, and the motion (Doc. 50) is
therefore granted. The matter is now before the Court on
plaintiffs motion to compel (Doc. 47), the amended supporting
memorandum (Doc. 58), defendant Marathon's opposing
memorandum (Doc. 65), and plaintiffs reply (Doc. 69). The
Court held a hearing on the record on the motion to compel on
November 21, 2019. For the reasons stated on the record at
the hearing and set forth below, plaintiffs motion to compel
is granted in part and denied in part.
Plaintiffs motion to compel/motion for sanctions (Doc.
Civ. P. 37 provides that "[a] party seeking discovery
may move for an order compelling an answer, designation,
production or inspection" if another party fails to
provide discovery responses or provides an evasive or
incomplete response. Fed.R.Civ.P. 37(a)(3)(B), (4). Fed. R,
Civ. P. 26(b) allows discovery "regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the case..
.." Fed.R.Civ.P. 26(b)(1); N.T. by and through
Nelson v. Children 's Hosp. Med. Or., No. 1:13cv230,
2017 WL 5953432, at *4 (S.D. Ohio June 30, 2017). The party
"who files a motion to compel discovery bears the burden
of demonstrating relevance." Id. (quoting
William Powell Co. v. Nat'l Indent. Co., No.
1:14-cv-00807, 2017 WL 1326504, at *5 (S.D. Ohio Apr. 11,
2017)). If the Court grants a party's motion to compel,
Rule 37(a)(5) authorizes the imposition of sanctions on the
noncooperative party or their counsel, unless certain
exceptions apply. Fed.R.Civ.P. 37(a)(5).
moves to compel discovery and impose sanctions on Marathon on
three basic grounds. First, plaintiff contends that Marathon
did not produce Rule 30(b)(6) witnesses who were
knowledgeable about the subject areas they were designated to
testify on. (Doc. 58 at 19-25, Exh. 3- Plaintiffs Rule
30(b)(6) Notice of Deposition). Second, plaintiff argues that
Marathon did not produce requested IH documents in connection
with the Rule 30(b)(6) depositions, even though such
documents should be available to Marathon due to the nature
of its business and its industry. (See Doc. 58 at
27-33, Exh. 1- Plaintiffs First Request for Production of
Documents). Third, plaintiff contends that Marathon has not
complied with the May 14, 2019 discovery Order by producing
documents as ordered by the Court. (Doc. 58 at 46-47, Exh.
2-Plaintiff s Second Request for Production of Documents,
Nos. 28, 29, 30). Plaintiff argues that Marathon has engaged
in a continuing pattern of abuse of the discovery rules that
started in the prior Louisiana state court case and has
continued to the present time. (Id. at 49-51).
Plaintiff claims he is entitled to legal sanctions for
Marathon's alleged discovery abuses, ranging from
financial penalties to default judgment. (Id. at
respect to the alleged Rule 30(b)(6) witness deficiencies,
plaintiff withdrew his objections to all but Topic 25,
relating to the deposition testimony of Jennifer Boggs. For
the reasons stated on the record at the hearing, the Court
overruled plaintiffs objection and determined that Ms.
Boggs' deposition testimony was not deficient as to this
the alleged Rule 30(b)(6) document deficiencies, plaintiff
withdrew all of his objections with the exception of
documents sought in response to Request No. 13 (Doc. 58-3 at
19). For the reasons stated on the record at the hearing, the
Court overruled plaintiffs objection.
respect to the documents sought in response to plaintiffs
Second Request for Production of Documents, Nos. 28, 29, and
30, the Court has considered the parties' written
submissions related to the current discovery dispute;
counsel's arguments presented at the hearing on the
motion to compel; the exhibits entered into the record at the
hearing; and the testimony provided by plaintiffs proffered
expert witness, Certified Industrial Hygienist Rachel M.
Jones, Ph.D., CIH. Plaintiff has carried his burden to show
that three categories of documents which he seeks are
relevant to his claim that from November of 2008 through May
of 2012, defendant Marathon negligently exposed plaintiff ...